Another couple of thoughts I posted over on social media which seemed worth memorializing here.
In light of the ongoing unpleasantness, Peter Sagal on BlueSky posted: “It’s amazing to find out at this late date how much the rule of law depended on people simply deciding, on a voluntary, daily basis, not to break the law.” That prompted me to muse:
Law is, at its core, “potential violence.” You will do this or not do that, else guys with guns will compel compliance. But there isn’t enough violence in the world to compel all of the things we’ve legislated. At least not without completely wrecking the joint.
So, we absolutely rely on daily, voluntary compliance with law. And, for the most part, it’s a rational social contract. For most of us, most of the time, law offers more benefits than costs.
As that proposition breaks down – perhaps because the laws become more burdensome or because of too many free riders – more and more violence will be necessary to enforce compliance.
At a certain point, if law becomes little more than a violent burden, the system breaks. You just have warlords.
I’ve made similar observations in the past. I think I got the “potential violence” idea from the writings of Alvin Toffler.
If you don’t abide by the law, ultimately, guys with guns will come and force compliance; either on behalf of the state, in criminal cases or on behalf of other citizens in civil cases. Part of the social contract is that we have all handed our right to do violence over to the State in return for its protection and the expectation that the State will, if necessary, do violence on our behalf to protect our rights. Part of the reason we agree to this bargain is because the alternative is a Hobbesian state of nature where our lives are solitary, poor, nasty, brutish, and short. In such a state, the only property you could truly call yours would be only so much as you could hold by force against the force of others.
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Part of the trick of our legal system is the fact that, by and large, Government use of violence is needed only rarely. Most people go along with the system without the need for actual force. If the Government had to force compliance with every order, the system would collapse. Most people go along with the system because at some level, even if they lose their particular case, they believe it is more or less fair.
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If too many people become alienated from the system, the system starts unraveling. More and more, people reconsider using violence on their own behalf. We start slipping back toward the Hobbesian state of nature.
So, aside from altruism, it’s in all of our best interests to make sure as many people as possible believe in the notion of the basic fairness of our legal system. And, as much as people grumble about it, you’ll notice that most folks will give the legal system a whirl rather than take matters into their own hands when they are unable to resolve the matter through some sort of private agreement. We don’t want that to change.
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